July 23, 2013

Publisher Law Journal Press anticipates an October 2013 distribution date for hardcopy supplements for Release 54 of "Structured Settlements and Periodic Payment Judgments" (S2P2J)
with online S2P2J subscribers receiving their update simultaneously at
no additional charge.

Online S2P2J includes a search feature and
download capability as well as link features to access individual book
sections, appendices, footnotes, cases and statutes.

First published in 1986 and updated semi-annually, S2P2J is co-authored byDaniel W. Hindert, Joseph J. Dehner and Patrick J. Hindert. Both the National Structured Settlement Trade Association (NSSTA) and the Society of Settlement Planners (SSP) have utilized S2P2J as an educational resource for their certification programs.

Negotiating Structured Settlements vs. Cashing Out -
Why and when should defendants agree to structured settlements as
opposed to lump sum settlements? Do defendants save money using
structured settlements and, if yes, why and how? Do structured
settlements result in additional costs and risks for defendants and, if
yes, how do defendants reduce these costs and risks? Release 54 examines
these questions in the context of existing state statutes and case law
and offers recommendations for defendants when they review their
traditional structured settlement policies and business practices. The
recommendations include new sample structured settlement Mission and
Disclosure Statements for liability insurers.

Insurance Company Insolvencies
- Release 54 expands and updates S2P2J's already extensive coverage of
insurance company insolvencies including state insurance guaranty
associations and the most recent developments impacting Executive Life
of New York [ELNY] and Reliance Insurance Company. Following ELNY's 22
years of New York State supervised "rehabilitation", S2P2J's Release 54
identifies lessons that potential structured settlement recipients and
their attorneys and advisers can and should learn from the ELNY debacle.

Medicare Set-Aside Arrangements
- Release 54 re-organizes and promotes S2P2J's coverage of Medicare
set-aside arrangements (MSAs) with updated materials for both workers
compensation (WC) MSAs and liability MSAs. These updates include an
extensive summary and analysis of the structured settlement provisions
in the new CMS WCMSA Reference Guide as well as conclusions and
recommendations for utilizing MSAs in personal injury liability cases.

Re-cycled Structured Settlement Payment Rights
- As low interest rates continue to negatively impact the primary
structured settlement market, new products featuring re-cycled
structured settlement payment rights have begun to proliferate as
funding alternatives for personal injury periodic payment settlements.
Release 54 features a new section with detailed diagrams and charts (designed by Timothy Morbach) to
explain the several variations of these products. In addition, this new
section compares the features of these products with traditional
structured settlements and summarizes recent investor warnings about
these products issued by the SEC and FINRA.

Securitization of Structured Settlement Payment Rights - S2P2J already includes a detailed Chapter 16 titled "Transfers of Structured Settlement Payment Rights"
which provides comprehensive coverage of most structured settlement
secondary market issues. This coverage includes: the history of the
secondary market; summary and analysis of IRC section 5891 and the state
structured settlement protection acts; and how judges review (or should
review) transfer applications. Release 54 adds a new section, with
detailed diagrams and charts (designed by Timothy Morbach), explaining how securitization of
structured settlement payment rights works.

Australia Structured Settlement Update
- S2P2J continues to track structured settlement developments in
countries outside the United States including Canada, the United
Kingdom, Continental Europe, Australia and New Zealand. Release 54
highlights a recent legislative development in Australia called “The
Lifetime Care and Support Scheme” which provides treatment,
rehabilitation and attendant care services to people severely injured in
automobile accidents. At least one Australian structured settlement
expert believes this legislative development could prevent an
annuity-funded structured settlement market from developing in Australia
anytime soon.

"Structured Settlements and Periodic Payment Judgments"
is a complete reference work for attorneys, settlement planners,
structured settlement consultants, risk managers, liability insurers,
annuity providers and secondary market participants. It is available in
both hardcopy and online versions which are updated semi-annually. For highlights from previous S2P2J updates, see the structured settlement wiki.

April 15, 2012

Sheltered from the violent storms that unleashed dozens of tornadoes across Oklahoma and the plains states on April 13-14, 2012, the University of Tulsa College of Law hosted the Richard B. Risk Jr. Settlement Planning Practicum which organizers believe was the first time any law school has sponsored a settlement planning educational conference.

Risk, a national authority on structured settlement law and one of the founders of the Society of Settlement Planners (SSP), endowed the settlement planning practicum which is expected to become an annual event for attorneys and law students. Risk invited and introduced the practicum presenters in the following speaking order: Joseph Tombs, Patrick Hindert, Mark Popolizio, Jeremy Babener, Jack Meligan and Professor Carl Pierce.

Joseph Tombs

Tombs, a lawyer, certified financial planner and former SSP President who, working with Risk, helped organize the Registered Settlement Planner (RSP) certification program, addressed "Common Issues Attorneys Face When Settling Cases". As part of his presentation, Tombs contrasted settlement planning and financial planning. One primary difference, according to Tombs, is the relative importance in settlement planning of "dissipation risk". Other differentiating factors identified by Tombs include the importance of: government benefits, medical forecasting and special needs legal issues. Tombs discussed structured settlements as a core settlement planning tool that combines relatively low investment and dissipation risks.

Tombs emphasized the multi-professional skill sets settlement planning requires and described settlement planning as an evolving profession stating: "The more we study and practice settlement planning, the more we realize its complexity and understand its challenges." He offered the following definition for settlement planning: "a profession helping recipients of settlement proceeds use those proceeds to achieve post-loss goals and transition successfully to post-settlement financial life."

Patrick Hindert

In his presentation titled "The History of Structured Settlements", Hindert (co-author of "Structured Settlements and Periodic Payment Judgments" and author of S2KM's blog) provided a visual analysis featuring schematic diagrams to explain how structured settlement has evolved from a claim management tool into a core component of the larger and more complex settlement planning profession - and how competing business models have restricted the growth of the structured settlement annuity market.

Hindert stated key structured settlement stakeholders have succumbed to "path dependence" by failing to strategically study and analyze continuing industry changes. Structured settlement business models and practices that once made sense and represented "industry standards", according to Hindert, have survived despite the eclipse of their justification, benefit and/or better alternatives.

Hindert described settlement planning as an "emergent system" and quoted John McWhorter, a linguist at Columbia University, to help explain the significance for structured settlements:

"Emergent systems [settlement planning] are ones in which many different elements interact. The pattern of interaction then produces a new element [settlement planning] that is greater than the sum of the parts, which then exercises a top-down influence on the constituent elements [including structured settlements]."

To improve and grow the structured settlement market, Hindert recommended more detailed and comprehensive study of alternative structured settlement payment models and life cycles within the broader context of settlement planning as an important and necessary first step.

Mark Popolizio

A nationally recognized legal authority in Medicare Secondary Payer (MSP) compliance and a current board member of the National Alliance of Medicare Set-Aside Professionals (NAMSAP), Popolizio addressed how Medicare impacts settlement planning. Starting with an introductory Medicare road map, he next discussed CMS' reimbursement rights for conditional Medicare payments - who is at risk; what is Medicare's recovery amount; how to challenge conditional payments; how to obtain information; CMS' most recently announced policies and payment options; and recent case law developments.

Popolizio also discussed Medicare set-aside arrangements (MSAs), in the context of both workers compensation and liability cases, as CMS' recommended method for protecting Medicare's future interests under the MSP Act. For liability cases, he began by emphasizing why the key issue is not: "Are liability MSAs required?" Instead, Popolizio reviewed two recent CMS memoranda providing informal information about how CMS looks at liability MSAs. Finally, Popolizio offered his own recommendations (a three-step process) for approaching the liability MSA issue and also reviewed recent related case law.

Jeremy Babener

Babener, a rising star among structured settlement legal and tax experts, offered a comprehensive overview of "Taxation in Personal Injury Cases". He began by outlining sources for tax authority, the variables for tax liability and the character of income. Next, he discussed the exclusion for personal injury damages and explained the language of IRC 104(a)(2) before addressing other damages in personal injury cases - past and future medical expenses; punitive damages; and pre and post-judgment interest.

Babener explained the importance of documentation, including the complaint and the settlement agreement, to maximize the exclusion for personal injury damages. He highlighted specific facts that frequently create problems with the IRS and conversely how to encourage the IRS to respect the documents so as to obtain the preferred tax result. Babener concluded by addressing these additional settlement tax considerations: legal expenses; structured settlements; qualified settlement funds; and transfers of structured settlement payment rights.

Jack Meligan

Meligan, a founder and current President of the SSP, discussed "Pitfalls in Settlement Planning and How to Avoid Malpractice"; offered reasons why personal injury claimants and their attorneys need settlement planning advice from a qualified professional or team of professionals; and reviewed an example of a settlement plan. In addition, Meligan:

Summarized three cases (Grillo; Lyons; and Spencer) to demonstrate why structured settlements need to be considered and risks associated with certain business behavior;

Cited statistics from American Bar Association studies to underscore the frequency and risk of malpractice cases against personal injury attorneys;

Cautioned plaintiff attorneys against failing to retain an independent settlement advisor; or to advise their clients about all settlement options (including the pros and cons of structured settlements); or to completely document their files as proof of their best practices.

Professor Carl Pierce

Professor Pierce is the W. Allen Separk Distinguished Professor of Law and Director of the Howard Baker, Jr. Center for Public Policy at the University of Tennessee. Among his professional activities, Professor Pierce has served as Reporter for the Tennessee Bar Association Standing Committee on Ethics and Professionalism and as Associate Reporter for the American Bar Association Special Commission on Evaluation of the Rules of Professional Conduct. During 2007-2008, Professor Pierce served as Consultant to the Society of Settlement Planners (SSP) and helped review and draft the SSP's Standards of Professional Conduct for Settlement Planners (SSP Standards).

Professor Pierce provided a summary comparative analysis of both the National Structured Settlement Trade Association (NSSTA) Statement of Ethics and Professional Responsibility (NSSTA Code of Ethics) and the SSP Standards. Despite substantial experience working with litigators, Professor Pierce acknowledged surprise by the degree of hostility between some plaintiff and defense structured settlement consultants. Professor Pierce:

Observed that all law school graduates need some exposure to structured settlements and settlement planning;

Suggested that the business collaboration models among insurance companies, plaintiff attorneys and settlement planners could look very different in the future; and

Recommended that representatives of NSSTA and SSP meet to discuss and compare their respective statements of ethics and standards.

Congratulations to Richard Risk, the University of Tulsa College of Law and the guest speakers who participated in the Settlement Planning Practicum. S2KM understands that Tulsa College of Law will publish a video compilation of the practicum speaker presentations on YouTube.

December 14, 2011

Acting as agent for the Receiver of Executive Life Insurance Company of New York (ELNY), the New York Liquidation Bureau (NYLB) mailed letters (shortfall letters) on December 7, 2011 to many individual ELNY structured settlement annuity (SSA) payees notifying them about the proposed ELNY liquidation and restructuring agreement as well as the amount of their anticipated shortfalls.

The ELNY shortfall letters also encourage ELNY SSA payees with anticipated shortfalls to contact their ELNY SSA owner "who may be responsible for supplemental payments, depending upon the terms of the structured settlement agreement, to the extent full payments are not made under the Restructuring Agreement."

Many SSA recipients of the NYLB letters are understandably confused because their annuity contracts identify "First Executive Corporation" (FEC) as the owner of their SSAs. Unfortunately for these ELNY payees and their beneficiaries, FEC declared bankruptcy in 1991 and no longer exists. For a background summary about the rise and fall and ultimate bankruptcy of FEC, see this prior S2KM blog post.

To help SSA recipients of the NYLB shortfall letters better understand their situation, this blog post explains the difference between two alternative methods utilized to fund ELNY SSAs:

Here is a graphic comparison of the "buy and hold" and qualified assignment financing alternatives, courtesy of The Settlement Services Group (TSSG), as set forth in Chapter 3 of "Structured Settlements and Periodic Payment Judgments" (S2P2J). Note: Patrick Hindert, author of "Beyond Structured Settlements", is also Managing Director of TSSG and co-author of S2P2J.

Annuity Financing ("Buy and Hold")

As defined in S2P2J, “ 'annuity financing' [buy and hold] means that a defendant or its liability insurer (the 'obligor') (1) gives the claimant an unfunded, unsecured promise to pay money in the future and (2) purchases and owns an annuity to provide a source of funds to meet this obligation."

Applied to ELNY, the owner of the annuity (defendant or its liability insurer) is the obligor and, if ELNY cannot pay, then the owner is obligated to make the periodic payments or make up the difference.

S2P2J further explains the rights and duties of the parties resulting from annuity financing:

"In exchange for a release from tort liability, the obligor promises to make periodic payments to the claimant and purchases an annuity to provide a source of funds to meet this obligation.

"The obligor owns the annuity, and as such, retains all incidents of annuity ownership, including the right to change the payee of annuity benefits. Of its own volition, the obligor directs that annuity benefits be paid by the annuity issuer to the claimant.

"The claimant has the right to receive periodic payments as due and may rely only on the general credit of the obligor for the collection of such payments. The claimant does not have rights in any property or investments owned by the obligor that are greater than rights of the obligor’s other general creditors.

"The claimant has no express rights against the annuity issuer because there is no privity of contract between them. Nonetheless, the claimant receives annuity benefits directly from the annuity issuer, and has no reason to complain to the obligor as long as the benefits are received as promised."

Qualified Assignment

As defined in S2P2J, “ 'qualified assignment' means that the defendant or its liability insurer (1) first gives the claimant a promise to pay money in the future; (2) then transfers that obligation to a substituted obligor pursuant to [Internal Revenue Code] Section 130; and (3) thus extinguishes its contractual liability for the obligation so transferred."

Applied to ELNY, the substituted obligor/assignee/annuity owner is FEC and, assuming the qualified assignment complied with all of the statutory requirements, the original obligor/assignor (defendant or liability insurer) thereby extinguished (or intended to extinguish) its contractual liability for the transferred periodic payment obligation.

S2P2J further explains the rights and duties of the parties resulting from a qualified assignment:

"In exchange for a release from tort liability, the defendant or its liability insurer or both (the 'assignor') promise to make specified periodic payments to the claimant.

"The claimant agrees to discharge the assignor’s duty provided an acceptable new obligor (an 'assignee') promises to make the periodic payments to the claimant.

"The assignee makes this promise to the claimant, the claimant accepts the assignee’s promise, and the assignor’s duty is discharged.

"For qualified assignments entered into on or before November 10, 1988: The claimant has the right to receive periodic payments as due and may rely only on the general credit of the assignee for the collection of the payments. The claimant does not have rights in any property or investments owned by the assignee that are greater than rights of the assignee’s other general creditors."

Note: because of a change in the tax law, for qualified assignments entered into after November 10, 1988, claimants may have a security interest in property owned by the substituted obligor without jeopardizing the tax-free status of the promised payments. If applicable to specific ELNY SSA payees, such a security interest could raise interesting legal issues because FEC also owed Executive Life of California (ELIC).

So what should ELNY SSA payees who received NYLB shortfall letters do?

First, they should try to locate copies of their annuity contracts, settlement agreements and, if applicable, qualified assignment agreements. If they have not personally retained these documents, they might try contacting:

The attorney who represented them in their original lawsuit; or

The structured settlement agent who helped purchase their annuity from ELNY; or

Metropolitan Life Insurance Company which has been administering ELNY annuities since 1991.

Second, they should retain legal counsel to review their documents and recommend options keeping in mind:

The January 16, 2012 deadline (Martin Luther King Day) for filing objections to the proposed ELNY Liquidation Petition and Restructuring Agreement; and

The announced ELNY "Hardship Fund" of at least $100 million (not a component of the Restructuring Agreement) created by a consortium of life insurance companies with a toll-free information line at 1-888-809-2254.

June 26, 2011

When David and Dorothy Snyder sold Delta Settlements to Michael Upchurch in 2008, David Snyder stated:"One of the main reasons Dorothy and I selected Michael Upchurch to purchase our company is that we felt he will bring much needed "added value" to you, the [Delta] Producers. ... We are confident that once you have had a chance to work with Michael, you too will feel comfortable with his honesty and integrity, and will help him grow the company to become the foremost plaintiff firm in the business."

Based upon Delta Settlements 2011 Annual Meeting this past week on Amelia Island, Florida, the Snyders' evaluation of Upchurch and the "value added" he brings to Delta and its producers was justified. Upchurch has continued to focus Delta's marketing on injury victims and their attorneys while improving Delta's operating systems and technology.

Delta's producers and administrators were joined at their annual meeting by structured settlement representatives from Allstate, MetLife, Pacific Life, and Prudential, who separately highlighted their companys' financial strength, product innovations and servicing improvements.

June 14, 2011

Both the Society of Settlement Planners (SSP) and the National Structured Settlement Trade Association (NSSTA) featured internet experts as part of their 2011 educational programs.

SSP's speakers, Mark Wahlstrom and Joe Didier, focused primarily on internet marketing and recommended expanded business use of web-based social media tools such as podcasts, blogs, Facebook, Twitter and Linkedin. Wahlstrom offered one especially insightful and negative cultural observation about the structured settlement industry as it attempts to transition from pre-internet to web-based business models, processes and skill sets: "We do not share ideas well in our industry."

NSSTA's speaker, LuAnn Reeb, also discussed internet marketing and social media tools in the context of "business communications today". Her emphasis, however, was more on the importance of learning web-based skill sets and how web-based conversations are replacing traditional one-directional marketing techniques.

How farstructured settlement stakeholders must still go to successfully transition their business to the Internet was summed up humorously by one SSP wag who asked speaker Didier at the conclusion of his presentation: "So, are you saying that this Internet thing is really important?"

Assuming the answer is "yes", neither SSP nor NSSTA has articulated any identifiable learning strategy to help members transition from pre-internet to web-based business models, processes and skill sets. At best, their 2011 educational programs will encourage some members to sign-up for Linkedin, Twitter, or Facebook.

S2KM comments and recommendations:

The structured settlement and settlement planning industries currently function primarily using old (pre-internet) business models, rules, skill sets, tools and culture.

Web-based business activity introduces new business rules, creates new business models and culture, and requires new skill sets and tools.

In the words of Kevin Kelly, an internet business pioneer: “as innovation accelerates, abandoning the highly successful in order to escape from its eventual obsolescence becomes the most difficult and yet most essential task.”

Advice for structured settlement and settlement planning stakeholders who consider themselves knowledge workers and want to successfully transition their knowledge and work processes to the internet - with or without assistance from SSP and NSSTA:

June 06, 2011

The purpose of this blog post is to compare structured settlements and personal injury settlement planning. As noted in an earlier S2KM blog post, the transition from structured settlements to settlement planning is one of three fundamental transitions reshaping the structured settlement industry. The other two fundamental transitions:

From a singular, illiquid, and non-assignable product to multiple products with greater flexibility to address changing needs and circumstances of injury victims;

From traditional (pre-Internet) to web-based business models, processes and skill sets.

As summarized in this history diagram, structured settlements and the structured settlement industry have experienced significant changes since structured settlements were first utilized in the United States during the late 1970s including:

The secondary market;

468B qualified settlement funds;

Integration with Medicare and Medicaid; and

Integration with settlement trusts.

This transaction diagram demonstrates how, as an integrated product, structured settlements have become increasingly complex legally and financially with multiple stakeholders and documents.

One result of this increased integration and complexity has been the evolution of structured settlements from a stand alone product into a core product for a more comprehensive profession called "settlement planning" - which some participants refer to alternatively as "settlement consulting" or "special needssettlement planning".

Although no statutory or standard definitions exist for settlement planning, leading practitioners and advocates, including Jack Meligan and Joseph DiGangi, have offered their own definitions and explanations. In addition, the Society of Settlement Planners (SSP) has adopted the "Standards of Professional Conduct for Settlement Planners" and offers a Registered Settlement Planner (RSP) certification program.

"Settlement Planning is the modern day [holistic] approach to assisting personal injury (and other types of) claimants with the personal, and highly unique, financial planning decisions surrounding the settlement of their claim.

"Settlement Planning starts from the premise that structured settlements are not the answer to everything that everyone needs or wants to do with their settlement dollars.

"Using that as a starting point, the first in a long line of questions for any personal injury claimant to answer is: 'What do you want this settlement to accomplish for you? What is the most important thing? Then, what is the, second most important, third most important, etc'.

"Only after you, as the claimant, answer the question above should you really begin to craft a plan to help you reach those goals."

DiGangi spoke about "settlement consulting" at the 2009 Winter Meeting of the National Structured Settlement Trade Association (NSSTA).

In what he termed "a wake up call for the industry", DiGangi criticized the traditional structured settlement business model and knowledge standards.

He also outlined his vision for industry transition, improvement and growth which he termed "comprehensive settlement consulting".

DiGangi characterized the current structured settlement industry as "a stagnant market" based upon an outdated "annuity broker" business model. Structured settlement clients and competitors, according to DiGangi, share negative perceptions about structured settlement consultants. As examples of negative perceptions, DiGangi cited the industry's single product offering and limited knowledge base.

As an alternative to the "annuity broker" structured settlement business model, DiGangi proposed a "consultant" model with multiple products and services providing added value for, and with, other settlement stakeholders.

Characteristics of DiGangi's settlement consulting model:

Planning orientation;

Solutions before products;

Blended products and services;

Product neutrality;

Compensation disclosure;

Professional training and designations;

Comprehensive skill sets and knowledge base.

During his 2009 NSSTA presentation, DiGangi also highlighted several transitional issues: licensing; conflicts of interest; collaboration models; and work process infrastructure.

S2KM will summarize and evaluate how SSP and NSSTA addressed "settlement planning" during their 2011 Annual Meeting educational conferences in a subsequent and related blog post.

Timothy Morbach of The Settlement Services Group (TSSG) developed the linked diagrams in this blog post. TSSG is an affiliate and strategic partner of S2KM Limited. Viewers can enlarge the diagrams to improve their visibility.